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FUGITIVEf.SLAYE mw 



A ]V S WE K E 



J IN- 4iLETTER TO 



. M, 

HON. Yv^ASHiNGTON HUNT. 



eOYZENOK ELECTT'OF TKE STATE OF VEW YOTSKi 






^- 



J A IM E S aV^Id aR R, 





'•A MEMBEK Of THE NEW YOEK BAJL 



NEW YORK. 
1850. 




LM 



rro ■ 1974 



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■3737 









I propose to reply to the five objections which have 
been most Irequenlly made to the Act of Congress of Sep- 
tember ISih. 1850, 'commorily called the Fugitive Slave 
Lav,-. 

My object is to remove doubts as to the constitutionalitj-, 
legality and propriety of this Act from the minds of good 
ciUzens, who are smcerely seeking the path of duty. I shall 
therefore use language', certainly legal, but as little as possi- 
ble technical. 

FIRST OBJECTION. 

That the Fugitive Slave Law deprives persons of the 
right of Habeas Corpus, and that therefore the Act is un- 
coDstitutionnl and illegnl. 

rLEI'LY. ;■ 

The right of Habeas Corpus is a right of a prisoner, in 
certain cases, to be taken before a magistrate, in order llial 
tlie lef^alily or illegality of his imprisonment may be invest- 
igated and decided by the magistrate. This right is con- 
firmed by Section 9lh, Article 1st, of the Constitution 
of the United States, in which it is declared that "the 
" privilege of the writ of Habeas Corpus shall not be sus- 
" pended, unless when, in cases of rebellion or invasion, 
"the public safety may require it." This right is also 
'confirmed bv Section 4th, Article 1st, of the Constitution of 
the State ol' New York, and by the Constitutions of all the 
several States of the United States. 

The ri;:ht of Habeas Corpxis is not mentioned in the 
Macna Charta of Great Britain, though it is claimed as a 
richt at common law. The writ of Habeas Corpus is not 



^ O-.* 






u 



1 1 IM 



grant.ible of course, but on niotioti staling a probable 
cause tor the application. If the evidence produced to 
support the application show the legality of the impris- 
onment, it is the duty of the magistrate to ret'u.-e to grant 
the writ, and the prisoner must remain imprisoned. The 
Fugitive Slave Law impairs no riizht of Habeas Corpus 
which existed before the piis.<age of this law. Application 
for the writ may be made as Ireely as could have been 
done if this law had not been passed: and there is nothing 
in the law to prevent the j^rantm'^ of the writ upon proba- 
ble illegality of imprisonment bein'.: shown by the evidence 
produced in support of the applicuiion. The.~e great prin- 
ciples of law have been clearly and forcibly set forth by 
Attorney General Csittende.n, and Justfce Griek, in their 
opinions recently published. 

But I go further than r\Ir. CiiiTTr\DEN and Justice Gbier. 
in reply to this first objection, and hold that the P'ugitive 
Slave Law is virtually and substantially a law, exte.ndi.no 

THE BE.\EFIT3 OF MABE.VS CORPITS, I.V CERT.\I\ CASES. TO 
FCCITIVE SLAVES, A.VD TO HEESO.VS CL.MXED AS KITGt- 

Tive SLAVES. The substantial benefit of Habeas Cor- 
pus, is the right to a speedy examination by a compe- 
tent magistrate, of the legality or ille-iality of the im- 
prisonment complained of. The sixth Section of the Fu- 
gitive Slave Law, provides for this most amply. No 
etFectuai action can be had imder and by virfue of the sixth 
Section of this law, unless the ptrrsi>n arrested shall " b-; taken 
''forthwith before the Court, JHd'j:e, or Commissioner, whose 
"duty it shall be to hear and determine the case of the ciaim- 
" ant in a summary manner." The proceedings before the 
magistrate are precisely the same as proceeriings in Habeas 
Corpus. . The duty oi the ina'jistrate is precisely the same 
in both cases — nainely : to hear and determine upon the 
legality or illegality of the irnpristmrnent. Any anri all 
things which mi^ht bo argued or urged in proceedings un- 
der Habeas Corpus, may be with equal force and efi'ect ar- 
gued or urged before the magistrate under thi.s law. The 
jurisdiction of the magistrate himself, and the constitution- 
ality and legality of the Act itself may be drawn in ques- 
tion. Further than this, by Section 6th, of the Fugitive 
Slave Law, thi- claimant must produce " sittisfactory proof 
to the magistrate, '" that the person so arrested does in (act 
"owte service or kbor, to the person or per.'ons claiming, 



Ba&TBraiaa- 



ating a- probable 
ence produced to 
ity of tlie iinpris- 

to refuse to gj-ant 
imprisoned. The 
)f Habens Corpus 
law. Application 

covild have l>een 
i tiiere is nothing 

writ upon proba- 
II by the evidence 
riiese great priu- 
■cibly set forth by 
:e Gr.iER, in tlieir 

and Justice Gkiep, 
that the Fugitive 

a law, EXTF.KDIKG 
SKTAIK C.^SES, TO 
L.'MMED AS FrjGI- 

of Habeas Cor- 
ion by a compe- 
Tality of the im- 
ection of the Fu- 
lost amply. No 
virtue of the sixth 
led siiall "be taken 
mmissimier, vhose 
case vi the claim- 
sedincs before the 
sedings in Habeas 
precisely the same 
termine upon the 
U. Any and all 

2 proceedings un- 
irce and efiect ar- 
ir this law. The 
d the constitution- 

3 drawn in ques- 
1, of the Fugitive 
atisfactory proof 
rested does in fact 

persons claiming, 



i; ■ . . • 

I - 6 - 

i " and that said person escaped."' — " Satisfactory proof " by 

r which is meant good and sufficient legal, equitable and tfch- 

X nical proof, the burthen being upon the claimant and the 

) benefit of rlouht belonging of right lo the prisoner: so that 

I if the claimant fail in a single point, whether of form or sub- 

k stance, meritorious or technical, the prisoner is entitled to, 

i and. as in tlie case of Henry Garnett, recently decided by 

r Justice GniER, will have his discharge. 

It is to be noticed, also, that the sixth Section of the law 
is imperative, commanding the claimant, to take the person 

• of the alleged fugitive bei'ore the magistrate for a hearing 

• and determination of the case " fort/iuiith," which means 
»/ without any delay, — so that a claimant, voluntarily and wil- 
; ' fullv keeping the person arrested in imprisonment, and de- 
laying to take him before the magistrate, would forfeit all 

''- remedy and redress under the law, — but the law is not im- 
perative in commanding the magistrate to determine forth- 

.M with, it leaves to the nia^slrale full discretion, and it is the 

'{, duty of the magistrate to suspend his determination against 

-! the alleged fugitive, until his mind shall be clearly satisfied 

f_ with the proof produced. Thus we have seen, that in a 

V recent case at Detroit, the alleged fugitive was allowed 

'I time to send from Detroit to Cincinnati, to procure evidence 

,i . on his behalf lo be used at the hearing of the case, which 

H was postponed for his advantage. Besides, it must be re- 

t memhered, that cases under this law, will occur only in the 

3' Northern States, in Avhich the magistrates, will of course 

^ feel the strongest disposition to insuie a fair hearing to the 

|: alleged fugitive. 

y Having thus shown that the proceedings under this law, 

i grant to the alleged fugitive, in certain cases, the substantial 

fi benefits of the writ of Habeas Corpus, I proceed in confirm- 

^: ation and enlargement of the same idea, to point out a great 

ff- advantage, which this law practically confers upon the 

^: fugitive, and upon alleged fugitives. The Constitution of 

|x ' the United States, Article 4th, Section 2d, declares, that "No 

•Ij " person held to service or labor in one State under the laws 

p. " thereof, escaping into another, shall, in consequence of any 

fe- " law or regulation therein, be discharged from such service 

k " or labor, but shall be delivered up on claim of the party to 

!J "whom such service or labor may be due." This Section 
of the Constitution contains verbal and grammatical errors 
and faults of construction, but its meaning is evident, 





^,,*Cv.v:' ;.;*.'v 



namely, that ani^ person held to service, ikc, shall be tlcli- 
vered up on clabn of the party, lo whuin such service ur 
labor rnay be due. The fuirilive shall be delivert?d up ' un 
" claim." What claim ? Alanifeslly on legal claim madi 
before a magistrate, competent to hear such claim. If the 
word "claim" do not mean this, it mean.s nothinir, and 
may be stricken out of the Constitution with its dependent 
words. It has been decided heretofore, (Priug vs. the Com- 
monwealth of Pennsylvania, It) Peters, 539,) by the Su- 
preme Court of the United States, that the owner might, in 
virtue of the Constitution, and his own right ol property at 
common law, seize and recapture his fugitive slave, in 
whatsoever State he might find him, and carry him back to 
the State from which he escaped. But it has been found 
that the remedy at common law alone, even if it theoret- 
ically exist, is practically inert'ectual, so that the owner of 
the fugitive must resort to his remedy und-r the laws of the 
United Slates ; and now that a special mode in which, and 
magistrates before whom, claims should be m;tde, are pro- 
vided and pointed out by Congn.^s.', through this law, it will 
be practically necessary that llie <-,laimanl ,-hould conform 
to the spirit and letter of this law in the prosecution of his 
claim. It is fair to suppose that this consequence was con- 
templated and intended by the framer of the bill, but, 
whether contemplated or not, it is a legal and proper conse- 
quence, which will secure to alleged fugitives the benefit of 
a speedy hearing before the nia'iistrate appointed, and thus 
procure for them,, substantially, the benefits, of the writ nt 
Habeas Corpus. 



SECOND OBJECTIO.V. 

That the Fugitive Slave Law deprives persons of the 
right of trial by Jury, and that, therefore, the Act is uncon- 
stitutional and illegal. 

REPLY. 

This objection is founded upon the error of supposing 
that before the passing of thi.s Ac, fugitives from service 
■were entitled to trial by jury. 

The right of trial by jury i.s a right secured to citizens of 
<he United States, in certain cases, by consliintions and 




service, >kc., shall be deli- 
lo wIkiiu sucIi service or 
shall be delivered up "on 
estly on legal claim made 
hear such claim. If llie 
s, it means nothing, and 
Litution with its dependent 
tofore, (Prii'2; vs. the Corn- 
Peters, 539,) by tlie Su- 
3, that i!ie owner migiit, in 
s own right of property at 
ture his lugitive slave, in. 
im, and carr\' him back to 
1. But it has been found 
alone, even ii it iheoret- 
ual. so that the owner of 
nedy und-.-r the laws of the 
pecial mode in wiiieh, and 
should be made, are pro- 
is, through this law, it will 
claimant should conform 
' in the prosecution of his 
his consequence was con- 
I framer of the bill, but, 
s a legal and proper conse- 
led fugitives the benefit of 
islrate appointed, and thus 
he benefits, of the writ oi' 



ECTION. • • " ■"•" 

V deprives persoDs of the 
lerefore, the Act is uncon- 



1 the error of supposing 
-Ct, fugitives from service 

right secured to citizens of 
.a«es. bj' constitutions anri 



statute laws. It is doubtful whether the right to trial by jury 
in anv case exist at common law, strictly so called. By 
some'legal authorities the origin of trial by jury is attribu- 
ted to tile Greeks. In England the custom of trial by jury 
has been interrupted bj% or existed concurrent with, other 
forms of trial from time immemorial. But these doubts 
and questions, important as they may be, are immaterial to 
the present purpose, because the right of trial by^ jury 
has been adopted and confirmed to citizens of the United 
States, by constitutions and express statutes, to the fullest 
extent tliat it was ever enjoyed by any people under the 
common, or any other, law. 

The Magna Charta of Great Britain, (a local statute or 
law of thetand of Great Britain, by no means applicable to. 
or the law of the land in the United States, inasmuch as 
the crreater part of its provisions are feudal and monarch- 
icalln their nature), declares, Section 29th, " that no free- 
" man shall be disseized of his freehold, imprisoned and 
" condemned, but bv judgment of his peers or by the law of 
" the land,"— nisi per legale judicium parium suorum. vel per 
"legem terr.T." It refers 1o freemen, not to bondmen; it 
declares that thev shall not be " imprisoned and condemned," 
thereby implying'a previous judicial accusation, ■'•but by judg- 
ment of their'peers,' who for aught contained in Magna Char- 
ta may or may not be twelve, "or by the law ot the land, 
tiiereby providing forother forms of judgment than the judg- 
ment of his peers, with no limitation of the forms except that 
they shall be the law of the land. The attentive reader will 
perceive how little foundation there is in iNIagna Charta for 
the opinion that the right of trial by jury is therein absolutely 
secured to citizeirs in all cases of imprisonment. ^Magna 
Charta specifically declares, that iudgment of one's peers 
shall not be the only form of trial, but that a freeman may 
be imprisoned and condemned by other forms known as the 
law of the land. The 29th Section of Magna Charta, be- 
fore quoted, is the historical origin of the guarantees of trial 
by jury, jk certain cases, which may be found m the Consti- 
tution of the United States, and in the Constitutions of the 
several States. By carefully reading the sections of those 
supreme laws relating to the sui)ject, it will be rioticed that 
the provision of Magna Charta has been essentially modified 
in these Constitutions. , ^ ,• 

• The Constitution of the United States, .\rticle .-id. Section 



2d, provides, ihat ** the trial of all crimes, except in cases ol 
" impeachment, shall be by jury, and such trial shall beheld 
" in the State, where the said crimes shall have been coiii- 
" milted." The Sixth Arti':ie of the Amendments to the 
Constitution of the United States provides, that ** in ail cn- 
" minal prosecutions, the accused shall enjoy tl-e riijht to a 
" speedy and public trial, by an impartial jury oi" the State 
" and district wherein the crime shall have been committed.'' 
If it be a ''crime'' lor a person held to service to escape 
from the party, to whom such service may be due, or in other 
words if a Fugitive Slave be a criminal, it is evident that 
under the provisions of the Constitution of the United States 
just quoted, even if there had been no special provision for 
the case, it would be the duty of the proper authorities to 
deliver up such fugitive to be removed to the State, v/here 
the crime of escape was CDinmitted, to take his trial in that 
State from which he h.id escaped. In the, Fifth Article of 
the amendments of the Constitution of the United States it is 
provided that " no person shall be deprived of his liberty vvith- 
"out due process of law." In the Seventh Article of the 
amendments of the Constitution of the United States, it is 
provided, th:a " in suits at common law where the value in 
" controversy shall exceed twenty dollars, the right of trial 
" by jury shall be preserved." The Constitution of the State 
"of New-Yoik, Article 1st, Section 1st, declares, that " No 
" niemh-n- of this State shall be disfranchised or deprived of 
" any of the rights or privileges secured to any citizen there' 
" of, unless by the lam of the land, or the judgment of his 
peers ;" and Section 2d declares that " The trial by jury, in 
" all cases in which it has been heretofore used, shall remain 
" inviolate forever." The Constitutions of .all ihe several 
States contain similar provisions, being modifications of the 
•29th Section of !Magna Charta of Great Britain. These 
provisions of the Constitutions, above cited, contain the sura 
and substance of the fundamental laws of this country upon 
the subject of the right of trial by jury. The impartial 
reader will notice how very far they are trom justifyinij the 
assertion that a fugitive slave is entitled to trial by jury in 
the place in which he may be arrested. Criminals are cer- 
tainly entitled to trial by jury, but where? this is the point, 
where? why in the State in which the crime was committed. 
" No person shall be deprivetl of his liberty withmil' — what ? 
" — without dny process of laio" — not without trial by jury.— - 



fela» ai iW l.'<a.^'*'itetJ h 



Crimes, except iu cases of 
[ad such trial shall be held 
les simll have been com- 
' the Amendments to the 
provides, that " in all cri- 
shall enjoy tl:-e right to a 
partial juiy of the Stale 
ill have been committed.'" 
lid to service to escape 
je maj- be due, or in other 
minal, ft is evident that 
ition oi" the United States 
no sj'ecial provision for 
'the proper auihorities to 
)ved to the State, where 
d, to take his trial in that 
J n the. Fifth Article of 
1 of the United Slates it is 
prived cf ills liberty with- 
; Seventh Article of the 
f the United States, if is 
1 law wliere the value in 
dollars, the right of trial 
Constituiiou of the State 
n 1st, declares, that " ZVo 
ranchised or deprived of 
ired to any citizen tliere- 
or the judgment of his 
it " The trial by jury, in 
•tnforf. used, shall remain 
,tions of all the several 
eing modifications of the 
Great Britain. These 
I'e cited, contain the sum 
iws of this country upon 
ly jury. The impartial 
y are irom justifying the 
titled to trial by jury in 
ted. Criminals are cer- 
A-here ? this is the point, 
the crime vas committed, 
lilif.rty witliouL" — what ? 
t u-ithout trial by jury.-- 




" In =uils at common law, where the value i" ""J^^^JJ, 

f nise slavery ? c;,„,„„ Article Clh, de- 

^ "anythtng^u the Constitution c^bw. of an^.^^_^.^^^ 

r . -contrary notwithstanding. TheConsUtuiion o 

f States has been adopted and confirmed J^ aH ^^ 
States .0 that there crm be no question that the ^onai 

1^ Sdtws of the United Staics are '^J^e su^emHaw^f J^ 

LV "land :•■ and being the svvrcme la^^ of ^1 e and. u 

r • . that there can be'no higher law ^^ ^ - 1^^;,,^^ jSr 

\ - further that any moral f ,f^^?Pl7^'<=j^^'' 7 So'vs further 

^V law cannot he the law of ^'- i«"^^^,^J^^ „ Science to 

t?^ " that to disobey the supreme law ot 7%'f"^' 'j'-, distinctly 

l^ • any such pretended higher law. is rebellion. It ^^'j^'" / 

;- 11 cleart provided and enac^d by -^ unoe^ .he Con^^_ 
tution and laws ot the U nited States, that a "j'";;=' ^ .. 

P- of the United States m providing loi this m-'^e'^ n 

'-■ he tod. B»i happily the Con,..u..on »<1 '»:j,»yl': 

: United Stn.es Jo «o. imevlere at » J'' *«„^';^', ° ,fe 

2 



10 

and it also provides for the removal of the fugitive to the 
State from which he escaped, but there the laws of the 
United States leave him to be disposed of or dealt with 
according to the laws of that State of which he originally 
was and continued to be the subject or citizen. It is pro- 
vided by the laws of the Southern States that persons held 
as slaves claiming to be freemen shall be entitled to trial of 
the fact by jury. This is the case, I believe, in each and all 
of the slaveholding States ; and if we may rely upon the 
numerous decisions given by Southern Courts under those 
laws, they are faithfully and fairly administered. I do not 
doubt that they are so. But however interesting this qne.^- 
tion may be on the score of sympathy and humanity, it has 
little to do with constitutional or legal rights. The United 
States may be regarded, (now since the unanimous adoption 
of the Constitution), as one great legal body, corporation or 
country, and in this view the delivery and transfer of a fu- 
gitive, who claims the right of trial, is merely a settlement 
or change of "venue," as it is called, or place of trial. The 
United States may also be regarded r;3 a league or union 
of sovereign States by virtue of a solemn compact or 
TRE.xTv called the Constitution of the United States. It is 
intended to be a treaty of perpetual peace, ainity, and alli- 
ance ; and in so far as it is a treaty, it is, according to the 
law of nations, the highest law of the land of each of the 
sovereign contracting parties, and as such would have su- 
premacy over, and take precedence of, all internal and 
municipal regulations of the several parties, even if this 
supremacy had not been distinctly declared and conhrmed 
in the instrument itself This treaty may be altered and 
amended in the way provided by it, but, like any other 
treaty, it cannot legally be abrogated or annulled except 
by the unanimous consent of the high contracting parties. 



THIRD OBJECTION. 

That the appointment of the Commissioners, authorised to 
act under the Fugitive Slave Law is unconstitutional and 
illegal. 

REPLY. 

Il there be any force in this objection, it applies to only 
a part ot the law ; namely, to some of the magistrates 



Ilku^;. 



J °'' "'e fugitive to the 
t there the laws of the 
sposed of or dealt with 
te of which he orieinallv 
ct or Citizen. It is pro- 
S^'ates that persons held 
all be entitled to trial of 
! believe, in each and all 

^veniay rely upon the 
lern Courts under those 
ad'n.nistered. I do noi 
ir interesting this ques- 
'y and humanity, it has 
:al rights. The United 
Jje unanimous adoption 
" "-"Jd.v, corporation or 
y and transfer of a fu- 
is merely a settlement 
3r I>!ace of trial. The 
5-5 a league or union 

solemn compact or 
•united States". It is 
eace, amity, and alii- 
Jt IS, according to the 
; land of each of the 
such M-ould have su- 

■ of, all internal and 
parties, even if this 
Jared and confirmed 

niay be altered and 

■ out, hke any other 
or annulled except 

ontractiDg parties. 

doners, authorised to 
nconstitutional and 




of the 



aj'plie: 



s to only 
magistrates 



11 

named and authorised to execute it, and leaves il to be en- 
forced or administered by the judges of the Courts of lie 
United States, wlio are aUo empo^vered to act ""^^r it 
But there is no ground whatsoever for the ^bjecUou- 1 he 
Constitution of tiie United States, Article 3d Section 1st 
declares, that "the judicial power of the United Staes 
«' shall be vested in one Supreme Court, and in such inferioi 
" Courts as the Congress may from time to tune o^f';; ^"'J 
'■establish. The judges, both o the supreme and in enor 
•■ Courts, shall hold their offices during good .^^^haMor and 
" shall at stated times, receive lor their services a compen- 
"saSn which shall not be diminished during the.r continu- 
'■ ance in office.^' Article 2d, Section 2d, declares that t_l e 
"President shall nominate ^"^ appoint .udges of the .u- 
"preme Court and all other officers of the ^^^'^^d State. 
"Whose appointments are not herein «\l'e'^^-'^?,P['^;Y,f J*":' 
<' and which shall be established by law But ^'e^ ^o"" 
" TrL mav bv law, vest the appointment of .^z.c7; mfenor of- 
4vi T"i,.v think proper, 'iL the President alone, .nthc 
^'■'Courtsof Law, or m the heads of departments ^o^ , 
^vhether c^r not these commissioners are m^^^^^^ fnc^h^e to 
of the Courts of Law appointing them, or ^s 1 mchne to 
think rather, special officers and agents of he bnited 
Statt;, ohear aSd determine whether or not alleged Jugi- 
tives shall be discharged from arrest or delivered "? ^^ ''« 
laws of the States which have rightful jurisdiction o^e^ 
thlm ; or whether or not they are Judges of inlerior Courts. 
Isha 1 Bot discuss,-for it seems to me that the Con^t - 
ution of the United States expressly authorises heir 
appoSitment, whatever the nature of their office ma3^l^.- 
Every commissioner to take testimony IS m some sense a 
Sdse Everv constable is in sOme sense a juage, author- 
sed in certain oases, and in his discretion, to arrest and 
mpHson his fellow citizens. Whatever ti-e comm.s.on^ 
ers mav be, they are appointed according to the spirit and 
letter of the Constitution of the United Mates. 

A trivial and captious objection has been made to the 
form of compensation provided for these commissioners 
The objector, assuming that these commissioners are judges 
of the United States, and assuming further that they are the 
5ud' s n'ant in Article 3d, Section 1st of the Const.tut.on 
above cited, o'uiects that the commissioners ought to be 
paid by a salary-, and not by fees becoming due when the 



-.-,>«- 



1 



services are rendereij. The Constitution says that the 
judges of the United .States, "shall, at staled times, receive 
*' for their services a compensation which shall not be di- 
minished during their continuance in office." The intent 
of the clause is to protect the judges from political influ- 
ences, through the delay or diminution of their compensation, 
and it these commissioners be judges meant by this Section of 
the Constitution, it will be unconstitutional to delay or dimin- 
ish their present compensation. But the objector may say, that 
the phrase, "at stated times," means on certain days of the 
year, and excludes incidental fees. The word " to state" 
is defined by Dr. Johnson, " 1st, to settle, to regulate ; 2d, 
"to represent in all the circumstances of modification." 
The Act conforms strictly to these definitions in providing 
for the compensation of these commissioners. The times 
of the payment of compensation to these commissioners, 
are "settled"' and "regulated" by the Act, to be the times of 
the "delivery of the certificates," or of rendering the other 
services mentioned. So that, even if we admit, what is by 
no means the trath, that these commissioners are "judges," 
in the meaning of Section 1st, Article 3d of the Constitu- 
tion, it appears that this law conforms to and complies with 
the letter, as well as with the spirit of the Constitution. 



for 




., , ,', FOURTH OBJECTION'. 

That, inasmuch as the Fugitive Slave Law declares "that 
"in no trial or hearing under the act shall the testimony oi' 
"an alleged fugitive be admitted in evidence," — the law is 
unjust. 

REPLY. 

It is a maxim of the common law, that no one ought to 
be a witness in his own cause, " nemo testis esse debet in 
•' propria causa." This maxim is stated by Blackstone to be 
"an invariable rule of the law of England," and the reason 
of the rule is said to be — " to avoid all temptations of per- 
"jury." 3 Bl. Comm. 371. This argument in justification 
of the provision of the Fugitive Slave Law has been fuily 
and forcibly set forth by Justice Geier, in his recently pub- 
lished opinion. 

But there is another argument which, it seems to me, justi- 



r^- 



■fon says ihat the 
i^ted times, receive 
i? shaiJ not be df- 
Fe-" The intent 
I"" political influ- 
(leir com)>ensatioc, 
i^oy tills Section of 
[to delay or dimin- 

ctor may say, that 
ertamdavs of the 
word " to state" 
to regulate ; 2d, 
of modification."' 
ous in providinn- 
ers. The limel 
commissioner? 
° i'e the times of 
dermg the other 
'"■'H- what is by 
's are "judges," 
^ the Constitu- 
I comphes witli 
ODstituiiou. 



o'ecJares "that 
2 testimony cf 
. — the law is 



one ought to 
Jsse debet in 
-'istone to be 
^ the reason 
ions of per- 
justification 
IS been fuily 
Jcentiy pub. 

tome.justi. 



13 

fies this provision oftlie act still more conclusively; name- 
ly, that, inasmuch as the Fugitive Slave Law is a Statute 
which concerns the liberty of persons, and therefore must 
be construed strictly ; and, if slavery he contrary to com- 
mon law, then, inasmuch as it is a maxim founded upon 
innumerable decisions that Statutes in derogation of the 
common law are to he construed strictly ; and inas- 
much as the claimant is required to furnish satisfactory 
proof — that the alleged fugitive actually does owe service, 
and as the evidence of such owing of service must be 
construed strictly and in accordance with the doctrine of 
the burthen of proof which lies upon the claimant ; there- 
fore, IT IS THE DUTY OF THE MAr.lSTHATE TO ASSUME AND TAKE 
FOR GRANTED THE RmHT OF LIBEKTT OF THE ALLEGED Ft:f:I- 
TIVE AS FCLLV AS THOUGH THE FUGITIVE HAD GIVEN TESTIMONY 

IN HIS OWN BEHALF. If wc cousider the fugitive to be 
a criminal — ihis duty of the magistrate is still stronger, 
for it is a maxim of common law that every 'persoa 
accused of crime shall be presumed to be innocent 
until he shall have been proved to be guilty. So that 
the alleged fugitive, while the law protects him from 
the" lemptatiou to commit perjury in order to gain his 
freedom, grants to him the same advantage which he would 
enjoy if he had borne witness in his own behalf Further 
than this, it is provided by this Act that no action can be 
had before any magistrate under it, unless the claimant of 
the alleged fugitive make affidavit that the services claimed 
are due — thus rendering anj'' fdse and fraudulent claimant 
a subject of the pains and penalties attached to perjury. 
So that it appears that under tliis Act, the alleged fugitive, 
instead of being hardly and unjustly dealt with in this res- 
pect, enjoys the double advantage, that his own oath is 
waived and dispensed with, without detriment to him, 
while the claimant's oath is required, at his peril if false. 
Suppose for a moment, that the alleged iugitive were al- 
lowed and required to give his testimony in evidence ? If 
the alleged fugitive were really not a fugitive, he would gain 
nothing bj' giving his testimony, for the law now presumes 
that he is not a fugitive : but suppose that the alleged fugi- 
tive really were a fugitive, and that he gave faithful testi- 
mony, stating the truth, the whole truth and nothing but the 
truth, what would be the inevitable consequence? Why, 



"TBTTTO*: 




14 

plainly, that the fooitive would condemn- iirM^ELF by ma 
ovvx TK.sTiMuN V. Is this a consequence which those -who 
make this fourth objection desire ? . . , ^ , •. ,»-,■} .- 



, ... FIFTH OBJECTION. . ; ;: . 

That while the Fugitive Slave Law would punish with 
fine and inaprisonment, those who obstruct or resist this law, 
it imposes- no pains and penalties upon persons, who may 
fraudulently and wrongfully claim or arrest a freeman as a 
fugitive from service, and that, therefore, the law is partial 
and unjust. . , 

.,-;■ .„•; REPLY. . - .: ; . ' . 



If this law had provided to impose pains and penalties 
upon persons, who may fraudulently and -wrongfully claim 
or arrest a freeman, such provision would have been super- 
fluous. For any such -wrongs, ample remedies, pains, and 
penalties had already been provided by law, both by com- 
mon law, and by special statutes of all the States. Any 
freeman who has been wronged in this way, has at his op- 
tion a great variety of prompt, powerful, and effectual re- 
medies and indemnifications, and he may avail himself of 
several of them at the same time. He may bring actions for 
slander, libel, malicious prosecution, false imprisonment, and 
assault and battery ; he may also cause the offender to be 
indicted and tried for all these crimes, and in addition to 
them for the high crimes of perjury and kidnapping, accord- 
ing to the circumstances of the ca.<e. He may arrest the 
offender and cause him to he imprisoned until he shall find 
satisfactory bail. If the offender escape into another State, 
he may in virtue of the Constitution of the United States, Ar- 
ticle 4th, Section 2d, anil .Article .'Jd, Section 2d, and Amend- 
ment (ith, make application to the Executive authorities of 
the State, into which the otlender may have tied, and cause 
him " to be delivered up," to be removed to the State from 
which he tied, to take his trial by jury in the State in 
which the otfence was committed. If the complainant make 
good his complaint betbre the jury, he will recover exem- 
plary damages, and the otlender will be punished, according 
to the malignity of his offence, by line and imprisonment. 



^-* 



N HI.\7?CLF BY HIS 

fiiicii those who 



uld punish with 
r re^^ist this Jaw, 
•son.v-. who may 
a freemau as a 
s law is parU'al 



' and penalties 
■onrrfully claim 
<;e been super- 
ifes- pains, and 
both by Corn- 
States, Any 
has at his op- 
1 efiectuai re- 
ail himself of 
pg actions for 
i:=oninent, and 
)flender to be 
D^ addition to 
ping, accord- 
ly arrest the 
he shall find 
Qother State, 
■d States, Ar- 
and Amend- 
LUlborities of 
d. and cause 
' State from 
he State in 
ainant rnafce 
'o^er exem- 
I, accordino- 
sonment. 



L 



; -,■•4 ■' *i 



■■;vy..»Y;> ' ._^ 



15 



Will any one seriously affirm that it is necessary, or de- 
sirable, or possible, to add anything, reasonably, to this for- 
midable array .of remedies and indemnifications, pams and 
penalties already provided by law ? 



I have thus replied to the five objections most frequently 
made to this law. If the replies be well grounded it must 
be admitted that the law is a fair and sincere attempt to 
ca'ry out the spirit of the Constitution. It is very much more 
favorable to the alleged fueitive, than I, before carefully ana- 
lyMUf^ it, imagined, and being a law of Southern origm, we are 
to inier that all its favorable provisions were expressly in- 
tended bv the framers of the bill. It deprive? the fugitive ol 
no privileges which he legally had before, while it confers 
upon him powers and richts which he had not before, it 
ou"ht. in mv opinion, to be satisfactory to all good citizens, 
wh'o honestfv and bona fide desire and intend to maintain 
the Constitution and the Union of the United States. 

But whatever may be the opinion of any individual as to 
theexpediencvofthe law, it is oue dutt to giv^e it a fair 
TKiAL, and, so long as it exists upon the Statute books, to exe- 
cute it faithfully and honorably according to its intent. If 
it should be found in practical operation to work injustice and 
not to fulfil its proper purpose, we may then proceed, and 
cause it to be, constitutionally and legally, altered and amen- 
ded. I am, sir, respectYully, 

Your fellow-citizen, 

JAMES A. DORR. 
69 Wall-st., New-Yokk., 
November 15th, 1850. 

Hon. Washington' Hunt, 

Governor elect of the Stale of New-\ ork. 





\'b 



^ .„. 



H179 74 592 









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